The
Hans India: New Delhi: Tuesday, 24 November 2015.
Section 1(2)
of the RTI Act which states that the RTI Act does not extend to the State of
J&K only means that if there are public authorities under the control of
State of J&K and located exclusively within the State of J&K and they
hold information, then such information cannot be accessed by filing
applications under the RTI Act with such public authorities in the State of
J&K. But, it does not mean that the Central government public authorities
located within the geographical limits of that State would be outside the
purview of RTI Act.
One Veena
Kohli sought information about a Court of Inquiry held in an army unit in Jammu
and Kashmir. During April 2006, late
Captain Sumit Kohli, the son of Veena, was serving with the 18 Rashtriya Rifles
in J&K. On 30th April 2006 at about 1520 hours, a sound of burst fire from
an automatic weapon was heard from the quarters of Captain Sumit Kohli.
He was found
slumped in a chair with his head hanging down and one AK-47 Rifle lying
alongside the chair. He was found dead. The incident was reported to the civil
police who, after investigation, concluded that the death of Capt. Kohli was
due to a self- inflicted injury and was, therefore, a suicide. It is stated
that the matter was also investigated by a Court of Inquiry under the Rule 177
of the Army Rules.
Veena sought
copies of the FIR, ballistic report, post-mortem report, inquest proceedings,
forensic report, hystopathological report etc. The government took the stand
that such information was held by the J&K police during the course of their
investigation and that the said police authorities were not obliged to furnish
such information under the RTI Act
"as the said Act is not applicable to the State of Jammu and Kashmir.” The
Central Public Information Officer (CPIO) rejected the request, saying that in
terms of the Rule 184 of the Army Rules, the respondent is not entitled to the
report of the Court of Inquiry as she was not subject to the Army Act.
First appeal
and complaint were filed simultaneously. On 3rd February 2009, the Central
Information Commission (CIC) did not agree with contention of the government
that the RTI Act could not apply to the central government establishments
within the State of J&K only on the basis of Section 1 (2) of the RTI Act.
It was held that "Central government establishments, wherever located,
would squarely come under this Act and cannot get exemption merely because they
are located in some areas of the country to which this enactment does not
extend." The CIC directed the authorities to provide the information
within 15 days of the receipt of the order.
The Writ
Petition (C) No. 7604 of 2009 was filed by the Union of India challenging the
order of CIC to provide information to Veena Kohli about a Court of Inquiry
held in an Army Unit located at J&K. CIC held:
“In case the said Court of Inquiry proceedings contain any information
which, in the opinion of the Public Authority, has implications for India’s
security, such information need not be disclosed as exempted under Section
8(1)(a) of the Act, but only after the CPIO clearly states so in a reasoned
order." The Delhi High Court in
2009 stayed the operation of the impugned order. It is pointed out that the
purport of Section 1(2) is clear that for the State of J&K, the central
enactment, i.e., the RTI Act would not apply. It is stated that the State of
Jammu and Kashmir has its own RTI Act.
In another
case Akansha Lal submitted an application on 27th November 2008 to the RTI
Cell, Army Headquarters, seeking inter alia an attested copy of the complete
Court of Inquiry proceedings instituted against her husband Major General A K
Lal, VSM, in respect of the complaint made by one woman officer that she was
sexually harassed by Major General Lal. Akansha Lal also sought a copy of the
findings of the inquiry held to investigate the complaint of sexual harassment,
an attested copy of the dak register, disciplinary case files of her husband
held with HQ 14 Corps, HQ Northern Command, statutory complaint file etc.
The Union of
India took a stand in its letter dated 24th December 2008 was that a copy of a
statutory complaint could not be provided. Thereafter, she was again informed
that since the RTI Act is not applicable to the State of J&K, she could not
be provided with the information. The respondent pointed out that the Court of
Inquiry was also held in the State of J&K.
It may be
mentioned here that the husband of the respondent was at the relevant time
serving as the General Officer Commanding (GOC) 3 Infantry Division in the
State of J&K. On 27th March 2009, the CIC held: "This is a clear misinterpretation of
the provisions of Section 1 of the Right to Information (RTI) Act.
This law does
not extend to the State of Jammu and Kashmir implying that the public
authorities of that State Government would not be governed by this law. It also
does not mean that the Central government public authorities located within the
geographical limits of that state would be outside the purview of this
law." The CPIO was directed to give
the information. Delhi High Court stayed
this order also.
Section 1(2)
of the RTI Act which states that the RTI Act does not extend to the State of
J&K only means that if there are public authorities under the control of
State of J&K and located exclusively within the State of J&K and they
hold information, then such information cannot be accessed by filing
applications under the RTI Act with such public authorities in the State of
J&K. For instance, there would be no State Information Commission under the
RTI Act set-up in the State of J&K.
The idea
behind this is that there should be a separate enactment providing for the
right to information in the State of J&K. This, by no stretch of
imagination, can mean that where the offices and establishments of the central
government, including the army, are located in the State of J&K, no
application can be made under the RTI Act to such offices and establishments under
the RTI Act to seek the information held by them.
Further, the
mere fact that army personnel are in the State of J&K does not preclude
such personnel or their relatives, as the case may be, from seeking information
concerning themselves through an application made under the RTI Act to the
Army.
The issue
really is “who the public authority is, which is holding the information and
not “where it is holding such information.” The public authority here is the
Army. The information held by it may pertain to an event which transpired in
J&K, and may even be held by it in J&K. That by itself does not
insulate such information from disclosure.
Even
information concerning the investigation by the J&K police, if available
also with the Army, would not be insulated only because the RTI Act does not
apply to J&K. The problem of residents of J&K accessing information
held by the central government may arise if there are no PIOs appointed by the
central government or the Army in the departments in J&K. However,
conscious of this difficulty, some of the central government departments have
in fact appointed PIOs in J&K. That is a correct understanding of the legal
position.
Justice S
Muralidhar of Delhi High Court agreed with the CIC view that the petitioner has
proceeded on a misinterpretation of Section 1(2) of the RTI Act. In both these
cases, it was erroneous on the part of Union to contend that the information
pertaining to the son and the husband of the two respondents, respectively,
cannot be provided as it pertains to events that transpired in the State of
J&K.
Delhi High
Court directed that order of the CIC in each case shall be complied with. The Court also ordered to pay Rs 5,000 each
to the RTI applicants. (Decision of
Delhi High Court in Union of India & Anr. vs Mrs. Veena Kohli on July 28,
2010)
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